A Bay Area man previously convicted of possession of child pornography was let off the hook today by the Sixth District Court of Appeal. The conviction came after Joseph Gerber of Milpitas, CA photoshopped the face of his daughter onto pornographic images. All of this on top of giving his estranged daughter weed and cocaine. I am personally nominating Gerber for idiot-father of all time.

As bad as all of this was, the Sixth District Court was hamstrung and couldn’t uphold the kiddie-porn conviction because of two reasons. First, California law requires that in order to call an image “child pornography” a child must “have actually engaged in or simulated the sexual act depicted,” Gerber’s daughter wasn’t abused in this way. Idiot-father-of-all-time nominee Joe Gerber was just taking some ordinary “family pics” of his little girl.

The second reason the Court was forced to overturn the conviction was a 2002 Supreme Court decision involving “virtual child pornography” that wound up protecting the creation of kiddie-porn that is entirely computer-generated as free expression. That’s right, folks – Kiddie-porn bad; CGI Kiddie-porn…uhm…not bad? 8BD’s sketchiest legal researcher (me) has informed (also) me that a more recent Supreme Court decision in 2009 bans the distribution of this variety of kiddie-porn, but pardon me if I’m still not satisfied. There’s a big fat loop-hole in this whole plan.

So Gerber is off the hook for now for photoshopping his little girl into nudie pics because he was – ahem – keeping them for personal use. His only real limitation is that he cannot distribute the pics to others. The way I see it (and I don’t even like slippery-slope arguments), this opens the floodgates for pedophiles of the world to pay for the full version of photoshop and start nabbing pictures of kids of the net – my kids, your kids, other pedophiles kids, ANY kids!

As long as they don’t sell or email them to anybody, it’s legit right? Right??

If all the Supreme Court stuff is adding up right (or WRONG, depending on how you want to see it), this is the way it is for now, and that’s also why a very disappointed Appellate Court is unable to tack on a few extra years of hard pedophile time onto Joseph Gerber’s sentence for his other offenses (we told you he gave his daughter coke right?).

I think the key to closing this loophole is to rethink what could be construed as exploitative or abusive activities directed towards children. I’m no lawyer, but the way I see it, the photos that Gerber took of his daughter were exploitative because he had intentions of photoshopping them into porn. These so-called intentions would probably be the sticking point in a legal fight, but it this case I think they would be undeniable to a jury of Gerber’s peers (assuming 12 pedophiles could be summoned in time to sit as “pedo-peers”).

Check out the sauce for all the deets about how Gerber’s daughter even got close to this weirdo, and to see just how bummed out the Court was that they had to send his case back for re-sentencing.

Justin is married and has two sons plus one daughter. He spent his childhood locked in a room with his NES and his AD&D manuals, when he wasn't out chasing chickens. He spends a great deal of time now trying to sound smarter than he really is.

http://www.zachrosenberg.com Zach Rosenberg

Yeah, there’s a legal slippery slope in there that falls apart when you start subbing in other crimes. In a relatively related point, the city prosecutors used to charge the dudes on “To Catch A Predator” with tons of stuff – just watch the end credits – we’re talkin’ 6 different charges that would chip away at the dude until he had a 5 year sentence. I’m sure those guys could find SOMETHING to charge a guy like this with, even if it was under fair-and-personal-use.